By G. Gray Wilson
Several years ago I wrote an article for the State Bar Journal entitled, “A Jury of Psychopaths.” Not everything I write gets published, and this was one of them. I recall that at least one editorial pundit questioned the statistical validity of the concept of rogue juries, while after four decades and hundreds of jury trials, I just assumed that everyone knew that juries are generally crazy. That did not mean that they never reached the correct result in a case (meaning I won), but only that on occasion the wheels came off and someone unfairly, unjustly got clobbered (i.e., I lost). Holding these truths to be self-evident, as I do, then why would anyone ever take up the banner and march off to war in a courthouse packed with madmen and fools?
I think the answer is, because many times we not only see those unjustly accused of wrongdoing, but accusers whose motives and claims are less than honorable, fomented primarily by that lust for the Spanish peso ($). I recall the plaintiff many years ago who filed a pro se lawsuit claiming that a physician had ripped out her tongue, which made a ghastly impression on me until she showed up in court on a threshold motion and gave me and the court a tongue-lashing quelled only by a summary dismissal. Or the young woman (and this one actually had a lawyer representing her) who sued her doctor over unsatisfactory cosmetic surgery which her complaint flatly stated had left her “ugly” and misshaped (conjuring up “The Swarm” alternative rock band from Down Under). So it came as a surprise when we scheduled her deposition and Venus Aphrodite walked into the conference room to be examined. That one also bit the dust.
But then there were the occasions when a plaintiff filed suit and I determined objectively that not only had the defendant been negligent to a fault, but that the injuries in the case were also horrific. That objectivity often placed me at odds with the client, more often with the carrier (and cost me one or two in my humdrum career, not to mention a few verdicts), yet what bothered me more was that opposing counsel seemed not to share my genuine anguish but rather regarded the client as a meal ticket, nothing more.
I carried this proclivity to view all such legal conflicts from a Manichaean perspective into the minority of cases where I represented plaintiffs, but over time found that I could keep my head screwed on straight by taking the side of the defense, functioning more as solon than fanatic. This may explain why, during the first half of my legal career, most of my trials occurred because I either refused to settle out of spite or simply lacked the skill to realize that I ought to do so for the benefit of the client. Once I figured this out, I suddenly realized that nearly every time thereafter that I was trying a case, it was because I was forced to do so by an unreasonable opponent or a myopic party, on one side or the other.
Admittedly, there is a tactical advantage to sitting on the defense side of a case. In the military, I learned even as a reluctant guest that the defense has a three-to-one margin over the attacking horde, for a number of reasons, ranging from concentration of force, fields of fire, higher ground, fortresses, etc. The same holds in litigation, for different reasons. A plaintiff has the burden of proof, the defense is usually better financed (you will not see many lawyers defend a case on a contingency fee = pro bono), and the rules of procedure and evidence provide a number of strategic barriers to recovery. And call me crazy, but juries in this state are still generally conservative (this does hold in a number of counties) for the most part. But none of that has stemmed the tide of lawsuits or reduced the number of outlandish claims in our society that many like to regard as progressive.
No one can deny that we live in a litigious society, where every perceived wrong (e.g., the tryout who did not make the cheerleading squad in high school, or the politician offended by the opponent who called him a “halibut”) is arguably fodder for a lawsuit. Then there are also those suits asserting claims that are either outright false, fraudulent or advanced for an unethical purpose. Political and other agendas are not the province of the courts, which is why we have those other two branches of government that are even more flawed than the judicial apparatus. But when frivolous claims proliferate, genuine grievances can get lost in the shuffle, making judges jaded about everything that appears on the Monday morning docket or hesitant to boot any suit, no matter how baseless. The main casualty is justice. A responsible defense bar can assist the courts, mediators, parties, carriers and sometimes even opposing counsel with the daunting challenge of fairly and objectively evaluating claims, on the allegations and the evidence, so that this highly imperfect system works better than whatever Premier Xi or President Assad has to offer. If all else fails, then the worst of all these options is attempting to persuade a jury of questionable talent and virtue where the truth lies.
Mind you, I will jump at a good plaintiff’s business dispute or personal injury case at every opportunity, but as with the defense of every lawsuit, it is not about the sound and fury, which really do signify nothing, but what really happened. The judicial system is so structured as to impress all litigators into the role of being poor players who fret and strut their hour upon the stage and then are heard no more (apologies to Shakespeare), yet it more closely resembles reality TV, not Perry Mason, in the final analysis. So while the adversary system by necessary design becomes part of the problem, defense lawyers can be part of the solution, guiding every dispute along the road, if not to redemption, to a fair resolution for all concerned. And when that cannot happen, lock-and-load, it’s off to war.
Gray Wilson is the 2019 Recipient of the J. Robert Elster Award for Professional Excellence.